Police Association of New South Wales v State of New South Wales [2019] NSWSC 587

Supreme Court New South Wales

Medium Neutral Citation: Police Association of New South Wales v State of New South Wales [2019] NSWSC 587 Hearing dates: 15 – 16 May 2019 Decision date: 20 May 2019 Jurisdiction: Common Law Before: Adamson J Decision: (1) Dismiss the third amended summons filed on 16 May 2019.

(2) Order the plaintiffs to pay the defendants' costs. Catchwords: ADMINISTRATIVE LAW – judicial review – non-reviewable actions –open to decision-maker to regard transfer of police officer as non-disciplinary – no error of law demonstrated – summons dismissed

STATUTORY INTERPRETATION – privative provisions – ss 88 and 213 of Police Act 1990 (NSW) – insufficiently clear to exclude judicial review

STATUTORY INTERPRETATION – meaning of "non-disciplinary transfer" in Police Act 1990 (NSW) – whether adverse financial impact on officer determinative – relevance of extrinsic materials – whether transfer "non-disciplinary" is informed by Commissioner's reasons and context in which transfer is ordered – loss of allowances not determinative where no change in rank or grade Legislation Cited: Industrial Relations Act 1996 (NSW) Interpretation Act 1987 (NSW), ss 2, 34, 35 Law Enforcement Conduct Commission Act 2016 (NSW), ss 3, 9, 10, 29 Law Reform (Vicarious Liability) Act 1983 (NSW) Ombudsman Act 1974 (NSW), s 35A Police Act 1990 (NSW), Pts 6, 6B, 8, 8A, 9, Divs 1, 1A, 1B, 1C, Pts 10, 12, ss 4, 5, 8, 10, 12, 13, 32, 38, 63, 64, 69, 75, 86, 88, 173, 181D, 201, 213, Sch 1 Police and Crown Employees (Police Officers – 2017) Award Police Legislation Amendment (Civil Liability) Act 2003 (NSW) Police Regulation (Appeals) Act 1923 (NSW), s 6 Police Regulation 2015 (NSW), cll 5, 7 Police Service (Complaints and Reform) Act 1998 (NSW) Police Service (Complaints, Discipline and Appeals) Amendment Act 1993 (NSW), Pts 8, 9 Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Commissioner of Police v Skelly [2010] NSWIRComm 18 Director-General, Department of Ageing, Disability and Home Care v Lambert (2009) 74 NSWLR 523; [2009] NSWCA 102 Hardcastle v Commissioner of Police (1984) 53 ALR 593 Kaldas v Barbour [2017] NSWCA 275; (2017) 350 ALR 292 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476; [2003] HCA 2 Police Service Board v Morris (1985) 156 CLR 397; [1985] HCA 9 Public Service Board (NSW) v Public Service Association (NSW); Re Steele (1987) 17 IR 286 Rich v Australian Securities and Investments Commission (2004) 220 CLR 129; [2004] HCA 42 State of New South Wales v Briggs (2016) 95 NSWLR 467; [2016] NSWCA 344 Summersford v Commissioner for Police [2018] NSWCA 115 Texts Cited: Explanatory Memorandum, Police Legislation Amendment (Civil Liability) Bill 2003 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 21 October 1998 Professional Standards Command of NSW Police, Complaint Practice Note Ref 10/2 – Non-Reviewable (Schedule 1) Transfer New South Wales, Royal Commission into the New South Wales Police Service, The Complaints and Discipline System (1997) Vol 2, Ch 4 Category: Principal judgment Parties: Police Association of NSW (First Plaintiff) Nicholas Gardner (Second Plaintiff) State of New South Wales (First Defendant) Commissioner of NSW Police (Second Defendant) Representation: Counsel: M Gibian SC (Plaintiffs) M Seck (Defendants)